The Emperor Has No Clothes: Bolton, Arendt, and International Law

In the chaos of what seems like a kamikaze attack by the highest levels of our government on the universally beloved forces of peace, ecology, and dignity, we would do well to remind ourselves of Hannah Arendt’s promise, or perhaps prayer, in her 1972 treatise On Violence: “Power and violence are opposites; where one rules absolutely, the other is absent.”

This week, the Trump administration briefly swiveled its rage away from domestic “enemies of the people” in order to condemn an institution most would have trouble finding fault with: the International Criminal Court in the Hague, the only internationally recognized body responsible for prosecuting the perpetrators of war crimes, crimes against humanity, and war crimes.  In his characteristic blend of the fascistic and the sniveling, the President’s National Security Advisor John Bolton delivered the following warning on September 10 in an address to the far-right judicial lobbying body, the Federalist Society:

“Today, on the eve of September the 11th, I want to deliver a clear and unambiguous message on behalf of the President of the United States.  The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.  We will not cooperate with the ICC, we will provide no assistance to the ICC, and we certainly will not join the ICC…If the court comes after us, Israel, or other US allies, we will not sit quietly.  We will ban its judges from entering the United States.  We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system.  We will do the same for any company or state that assists an ICC investigation of Americans.”

Bolton’s frenzied attack comes as the Court’s prosecutor prepares two investigations that the administration deems disturbing: one into potential Israeli crimes against humanity in the bombardment of civilians in Gaza and Palestine, and one into potential war crimes committed by the United States and its allies in Afghanistan.  Despite the anxiety of Bolton’s rhetoric, it is worth noting that the consequences of an ICC indictment are, to say the least, variable – of the 39 individuals indicted in the Court’s sixteen-year history, one (Muammar Gaddafi) was anally raped with a bayonet and murdered on television screens around the world, and another (Omar al-Bashir) remains the President of Sudan, uninhibited.  With no policing body of its own, the Court is not in itself a threat to criminals of any kind – but it still seems frightening enough to Bolton.

Bolton’s own antipathy to the ICC extends back to its founding in 2002, when he served as Under Secretary of State for Arms Control and International Security, working under Colin Powell in the George W. Bush Administration.  When the Court, in its first year, suggested that Bush’s bombings and kidnappings across Afghanistan, without any evidence linking the country’s government to the 9/11 attacks, could be considered a war crime, Bolton clashed with its judges head on.  He and his colleagues rushed the American Servicemembers’ Protection Act through Congress, authorizing potential military force against the Hague if any American is ever detained for prosecution there.  In his speech to the Federalist Society, Bolton called his role thwarting the Court for President Bush “one of my proudest achievements,” and called the body “a freewheeling global organization claiming jurisdiction over individuals without their consent.”

In making this observation, Bolton rightly cemented the core principal of liberal governance – that, as Jefferson wrote in the Declaration of Independence, “Governments are instituted among men, deriving their just powers from the consent of the governed.”  Ironically, that principal is the core legitimating principle of international law and the prosecution of war criminals – whatever violations a government inflicts on it its own body politic pale, ethically, in comparison to crimes against foreigners and non-voting members of society who could not consent to that government; that is, war crimes and crimes against humanity.  If Bolton really opposed “freewheeling global organizations claiming jurisdiction over individuals without their consent,” he would take the Court’s side.  It’s hard to imagine a better descriptor of the potential defendants, CIA agents who seized Afghan farmers without trial, drugged them and brought them to secret black sites around the world, submitted them to chemical, psychological, sexual, and physical torture, and destroyed public record of their very existence.

Throughout his tenure with President Bush, and now again with President Trump, Bolton served as a more bootlicking Luca Brasi, a thug for the ideal of “claiming jurisdiction over individuals without their consent.”  While the CIA was pulling together enough fabricated evidence to frame Saddam Hussein for chemical weapons violations, Bolton took his role as a mafia grunt seriously, literally telling José Bustani of the Organization for the Prohibition of Chemical Weapons not to look at the claims too closely because “We know where your kids live.”  His lack of scruples makes him an invaluable asset for the powerful and deranged.  Alarmed by his moustache, Trump originally passed Bolton over for a cabinet seat; now, as “the adults in the room” suggest coups in anonymous Times op-Eds, the President must be glad for someone who shares his lust for dirty-handed power politics.

But why the ICC?  Thanks no small part to Bolton’s and the Bush Administration’s interference, the Court is an impotent, almost aesthetic international organization.  Occasionally, as in the case of Libya, the Court’s rulings have been endorsed by the United States and led to international displays of “legalistic” policing, but only if the war criminal in question happens to stand in the way of American foreign policy interests.  If the Court was to hold a trial for CIA agents or Israeli generals, it would be only in the sense that Bertram Russell and Jean-Paul Sartre held a tribunal for the architects of the Vietnam War – a clever and righteous but ultimately ineffective act of protest.  Hearing Bolton’s speech (a speech by a sitting National Security Advisor who claims to speak for the President), one would imagine a terrorist organization or drug cartel capable of doing significant harm to Americans and American interests, not a group of bureaucrats doing their best to at least lend a voice to justice in the Netherlands.

What alarms Trump and Bolton is not the reality of an International Criminal Court, which is scarcely a reality at all, but the Idea of an International Criminal Court.  Their response is not practical but ideological.  What unsettles the President is the premise of international law, of principles that supersede the will of the American state, sublimely executed by an Executive. In an international (read non-presidential) law, he sees a possibility not of accountability but of ungovernability.  The repulsive result of two centuries of rule-by-narcissist, Trump can not conceal what every American President has felt.  He sees himself, horrifyingly enough, as a god whose will is not as important as the world’s compliance to it.  The problem Trump sees is not that there are challenges to his absolute global rule (thanks to generations of hegemonic US foreign policy, there are not), but even that someone could even imagine such challenges.  Remember his Tweeted response to Iranian President Hassan Rouhani’s benign and toothless assertion of sovereignty: “NEVER, EVER THREATEN THE UNITED STATES AGAIN OR YOU WILL SUFFER CONSEQUENCES THE LIKES OF WHICH FEW THROUGHOUT HISTORY HAVE SUFFERED BEFORE.”

To announce opposition to the ICC the night before the seventeenth anniversary of the 9/11 attacks carries with it a certain poignancy: September 11, 2001 will undoubtedly go down in history as the day our government cast away any pretense of power for justice’s sake and dedicated itself unabashedly to power for power’s sake.   Just three days later, every member of Congress except California’s Barbara Lee leapt to grant President Bush the unlimited right to “use force against terrorists,” wherever they could be, thus shattering the international law’s founding principle: the principle of sovereignty.  Bush used that authorization of force to spread unprecedented death and destruction in Afghanistan, Iraq, Pakistan, and Somalia; Obama, for all his noble words, widened that violence to Yemen, Libya, and Nigeria.  Both Presidents considered borders invisible lines that applied to Mexicans but not to American bombers – both saw themselves as simultaneously arbiters of international law and immune to it.  The potential war crimes the ICC seeks to investigate are war crimes that were justified by evoking the specter of falling Twin Towers.  But 19 hijackers flying four airplanes could not possibly justify to the invasion of at least seven countries, the murder of hundreds of thousands of innocents, and a global regime of torture and assassination except in the well-oiled cynicism of American power and its deliberate overreactions.

Of course, the administration’s conspicuous abandonment of Theodore Roosevelt’s Gilded Era mantra, “Speak softly and carry a big stick,” suggests that the President might be overcompensating for something.  Bolton’s overreaction to the ICC and Trump’s cyberbullying diplomacy are at a certain level just repeats of the 2016 Republican Primaries, when nothing sparked the future President’s pathos quite as much as Marco Rubio’s remark, “You know what they say about guys with small hands.”  But on the political stage, the President (a stand-in for the state itself) is worried about much more than an inadequate Trump Tower.  An imaginary international law that applies to American crimes speaks to a global realization that our country’s hegemony is shattering.  The administration’s panicked rush to speak in the most violent terms possible highlights a deep absence of power as Arendt saw it – “the human ability not just to act but to act in concert.”  The American presidency lacks any credibility either with its own people or with the world’s, it represents no movement of people’s will or desire; as far as the people are concerned, it has no existence except what it can enforce through coercion and violence.

On top of Arendt’s distinction between power and violence, consider Slavoj Žižek’s line between subjective violence (violence performed by a “clearly identifiable agent”) and objective violence (violence created not by individuals but by invisible structures and systems).  Trump and his grotesque swamp of cronies represent the former very well, but the anxieties of hegemony and the violent outbursts of its insecurity are much older than them.  International law was a disturbing imaginary long before his absurd rise to power.

In April 2009, just three months in office, President Obama issued a full pardon for all CIA officers implicated in a torture program that included waterboarding, mock execution, anal rape through forced feeding, sexual and physical threats against family members, deprivation from sleep and food, severe beatings, and not infrequent accidental deaths.  The reason he gave, “a belief that we need to look forward as opposed to looking backwards,” seems less plausible than guaranteeing his agents immunity when they carried out their own drone assassination program around the world.

In 1986, the International Court of Justice (a UN organization for resolving disputes between states) ruled that President Reagan’s support for the far-right guerrillas in Nicaragua known as the Contras – terrorists who killed, tortured, and raped the poorest Nicaraguans with CIA training for a decade and facilitated the administration’s money laundering with drug cartels and the Iranian theocracy – was illegal.  Rather than abide by the Court’s ruling, as promised, Reagan asserted that the US was only required to accept the Court’s jurisdiction on a case-by-case basis, and continued his efforts to violently overthrow the Nicaraguan government.

In 1974, Congress brought five impeachment charges against President Nixon; the first of them, introduced by Robert Drinan, was for the “high crime and misdemeanor” of bombing the sovereign nation of Cambodia without any legal process, killing tens of thousands if not hundreds of thousands of innocent people.  This charge of mass murder, which would make the President guilty of international crime, was dismissed 26 to 12 in the House Judiciary Committee; it was the simple charge of obstruction of justice that led Nixon, a war criminal, to resign his office, though his successor Gerald Ford pardoned him for all crimes committed in office.

And on another infamous September 11, in 1973, Nixon and his National Security Advisor Henry Kissinger offered tactical support to the fascist Augusto Pinochet in toppling the democratic Chilean government of Salvador Allende.  This atrocity was one of the only American war crimes ever redressed in any court – Chilean and Argentinian judges began pursuing Kissinger for his role in the coup after Nixon died in the 1990s, and in 2001 the elder statesman of war crimes was actually served a subpoena while visiting France.  The Bush, Obama, and Trump administrations have all sheltered Kissinger from further prosecution by his victims.  Today, the 95-year-old can likely consider himself permanently protected from having to answer for, for example, bribing officers to throw dissidents out of helicopters.

The American Presidency itself (and its contingent offices) has spent most of modern history aggressively silencing even the concept of an international justice, because the American presidency in its modern iteration exists to serve as international judge, jury, and executioner without the consent of the governed world.  Some would say this started with President Truman, unleashing the power inside the atom on the people of Japan and with it asserting his exclusive ability to end life on the planet earth.  Others would point to President Monroe, declaring an entire hemisphere and its profitable but brutal plantations the “American backyard.”  I say, why not look further?  What could “consent of the governed” have meant to Jefferson or Washington, human beings who believed other human beings, the workers in their fields and the mothers of their children, were living and breathing property?

Regardless of where it started, it is clear that the American confusion between violence and power is coming to an end.  Bolton blusters at the ICC while Trump rests his credibility on an artificially inflated economy, while fires blaze from the Arctic Circle south and hurricanes prepare to strangle the coastline without the former constraints of the Gulf Stream, while the last drops of oil beneath the feet of our client dictators are burnt away and the global eye wanders from our poorly-written comedy script, while Americans find themselves orders of magnitude more likely to die from drug addiction or suicide or inhaled toxins than from elusive foreign threats.  What is there left to rule, what can ruling even mean?  In a world of alienation, the powerful may be the most alienated at all – power, in its Arendtian sanctity, is long since impossible.  As history passes by the Trumps and Boltons and rulers at large, it is only for us to distinguish between cataclysm and liberation, between justice and its eternal absence.  Our mad emperor has no clothes, but more significantly, his empire means nothing.





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